Soulemani Arouna v. Mark Ash, et al. - Order of Relief

Soulemani Arouna v. Mark Ash, et al. - Order of Relief

CHRO No 0230045
Fed No. 16aa13404

Commission on Human Rights and Opportunities ex rel. Soulemani Arouna


Mark Ash, et al.

January 8, 2004


This matter involves an African-American immigrant, lawfully in the United States from his native country of Togo. In his complaint, dated July 23, 2001, the Complainant alleged that he was discriminated against with regard to the terms and conditions of his employment, and terminated on account of his race, color, and ancestry in violation of Title VII of the Civil Rights Act of 1964, as amended, and General Statutes §46a-60 (a)(1) and (a)(4).

This order is the result of a Hearing in Damages conducted on October 20, 2003.

I. Procedural History

On July 23, 2001, the Complainant, as mentioned hereinabove, filed an Affidavit of Illegal Discriminatory conduct with the Commission on Human Rights and Opportunities (hereinafter "CHRO"). This Complaint was subsequently amended on June 18, 2003 to add a/k/a Mohammed Sheikh after the Respondent Mark Ash and "Corp." after the Respondent Metro Merchant. The Respondents, through their attorney, Robert H. Boynton, Esq., filed a Motion to Dismiss this complaint on November 30, 2001 (CHRO Exh. 6), and subsequently filed an answer on December 10, 2001.

After investigation by the CHRO, and a failure to effect conciliation, reasonable cause was found by the assigned investigator to believe that an unfair practice was committed as alleged. Thereupon the case was certified for filing with the Office of Public Hearings on June 30, 2003. Pursuant to General Statutes §46a-84, as amended, a Hearing Conference was scheduled for July 21, 2003, and subsequently rescheduled for July 30, 2003.

The Respondents failed to appear at the Conference, and Referee Jon P. FitzGerald, substituting that day for the undersigned, was advised via a telephone call that Attorney Boynton would not appear and that he no longer represented the Respondent. The Respondents also failed to file an Answer to the certified complaint, despite being ordered in the Hearing Notice of July 8, 2003 to do so within fifteen days of the Notice. Respondents were specifically advised (Section II - Answer) that "failure to file an answer may result in a order of default and a hearing in damages in accordance with §46a-54-88a(a)(1) of the Regulations."

As a result of both the failure to appear and to file an Answer, the CHRO filed a Motion for Default for Failure to Appear on August 20, 2003, which was granted on September 4, 2003. Pursuant to the granting of this Motion, a Hearing in Damages (hereinafter "Hearing") was scheduled for and held on October 20, 2003. At the Hearing the Respondent did not appear. (Tr. 5-6)

II. Findings of Fact

As the matter proceeded as a hearing in damages resulting from an Order of Default, the Hearing was necessarily limited to the relief necessary to eliminate the discriminatory practice and make the Complainant whole, and not to any evidence related to liability issues. General Statutes §46a-83(i); Regulations of Connecticut State Agencies §46a-54-88a(b). Based on the exhibits admitted into evidence, including the Complaint, and testimony from the Complainant, the following facts are found:

1. The Respondent had adequate notice of all proceedings herein and refused to appear or participate nonetheless (Tr. 5-6; Commissions Brief in Support of Demand pg. 1-2; CHRO Exhibits 5-7)

2. The Complainant was employed by Respondents from October 21, 1996 until January 27, 2001 when he was terminated. His position was that of Assistant Manager and his immediate supervisor was Mark Ash, also the owner. (Tr. 8-9)

3. Upon his termination on January 27, 2001, the Complainant was unemployed until May 17, 2001. (Tr. 10)

4. Complainant received no unemployment compensation from January 27, 2001 until May 17, 2001. (Tr. 11)

5. As of his termination in January 27, 2001 the Complainant was receiving $600.00 per week base pay in salary, and annually received a raise of $50.00 per week each year. (Tr. 13)

6. The Complainant received an annual bonus amounting to two weeks salary. (Tr. 11)

7. The Complainant obtained employment with Xpect Discount on May 17, 2001 and earned a base pay of $9.50 per hour on a 40-hour workweek. (CHRO Exh. 1)

8. The Complainant lost income for calendar year 2001 was $16,622 (CHRO Exh. 1) representing the difference in income as between the two jobs as well as a total loss of income from January 27, 2001 until May 17, 2001.

9. The Complainant lost $13,299 in income in calendar year 2002, representing the difference between his actual earnings and those he would have made with Respondents absent his wrongful termination. (CHRO Exh. 1)

10. The Complainant has lost $12, 219 for the calendar year 2003 though October 17, 2003 based on a similar calculation of the income differential. (CHRO Exh. 1)

11. The Complainant was wrongfully required to pay $3,265 to Respondent because of the latter's claim that he was responsible for the loss. (Tr. 14)

12. Barring a promotion, or obtaining a different job, Complainant is unlikely ever to match at his current job the earnings he made working for Respondents. (Tr 24-25)

III. Analysis

The presiding officer is authorized to award retroactive and prospective monetary relief (back and front pay) Silhouette Optical Limited v. Commission on Human Rights and Opportunities, 10 Conn. L.Rptr. 19, 599 (February 28, 1994); State of Connecticut v. Commission on Human Rights and Opportunities, 211 Conn. 464, 478 (1989). The award of front pay, if any, must be limited to a reasonable time period and supported by the evidence. Torsyan v. Baehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 33-34 (1995).

The presiding officer is also authorized to award prejudgment and postjudgment interest on the award. The award of interest and its method of calculation are within the discretion of the presiding officer, who may choose the interest calculation best suited to making the complaint whole and may compound the interest. Silhouette, supra, 10 Conn. L. Rptr. No. 19, 604.

Relevant statutes also impose individual liability on supervisors who hold positions of power, control, and authority and who use that power, control, and authority to engage in conduct giving rise to a discrimination claim. Dombrowski v. Envirotest Systems, 25 Conn. L.Rptr. 272 No. 8, 273 (1999).

In this case, with an order of default having been entered and liability having been found, the undersigned has the duty to determine the relief necessary to make the Complainant whole based on the evidence presented. That evidence shows the following losses to have been incurred:

(1) Wage and benefit loss for calendar 2001 - $16,622

(2) Wage and benefit loss for calendar 2002 - $13,299

(3) Wage and benefit loss for calendar 2003 up through October 17, 2003 - $12, 219

(4) Monetary loss due to wrongful charge to Complainant - $3,265
        Total - $45,405

I am unable to agree with the Commission's request for front pay totaling $23,430 representing the period October 18, 2003 - December 31, 2005 (CHRO Amount in Demand dated October 29, 2003). Although Complainant did attempt to mitigate his damages resulting from his January 2001 dismissal by obtaining employment in May of that year, the fact remains that the latter date is now 2 ½ years in the past already. Complainant failed to produce any evidence at all as to why he was able to hold a higher paying job for 5 years, (1996-2001) than his current one, but has been unable to obtain a similar position for the past 2 ½ years. There was no evidence about any attempts to obtain another job than the one currently held or to improve his skills so as to make that more likely. Instead he seems to have been relying on this proceeding to making himself whole going forward.

Postjudgment interest is awarded on the back pay and monetary loss award of $45,405 at the rate of 10% compounded annually, from the date of October 20, 2003, the date of the default hearing. This rate is consistent with the rates assessed commonly by the Referees on such damage awards.

IV. Conclusions of Law

The Respondents were given legally sufficient notice of both the Hearing Conference, the requirement to file an Answer, and of the Hearing in Damages.

The entry of the Default Order on September 4, 2003 established liability for the claims of discrimination contained in the Affidavit of Illegal Discrimination dated July 23, 2001, as amended.

The Complainant is awarded back pay and monetary relief in the amount of $45, 405.

The Complainant is further awarded postjudgment interest at the rate of 10% per annum as from October 20, 2003 on that sum.

No front pay is awarded for the reasons set forth above.

V. Order of Relief

The Respondent Mark Ash individually and as doing business as Metro Merchant Corp., Value Mart a/k/a Litchfield Locke-It Processing Co., shall pay the Complainant $45, 405 as back pay and monetary relief for the period January 27, 2001 through October 17, 2003.

The Respondent Mark Ash individually and as doing business as Metro Merchant Corp., Value Mart a/k/a Litchfield Locke-It Processing Co., shall also pay the Complainant interest on the sum of $45,405 at the rate of 10% compounded annually, as from October 20, 2003.

As no other relief was requested no further orders are necessary.
It is so ordered this 8th day of January 2004.

Gordon T. Allen
Presiding Human Rights Referee

Soulemani Arouna
Mark Ash
Merchant Corp.
Value Mart
Litchfield Locke-It Processing
Attorney Earl Williams
Attorney Cheryl A. Sharp